Academic journal article Harvard Law Review

Fourth Amendment - Plain View Doctrine - En Banc Ninth Circuit Holds That the Government Should Waive Reliance on Plain View Doctrine in Digital Contexts

Academic journal article Harvard Law Review

Fourth Amendment - Plain View Doctrine - En Banc Ninth Circuit Holds That the Government Should Waive Reliance on Plain View Doctrine in Digital Contexts

Article excerpt

FOURTH AMENDMENT--PLAIN VIEW DOCTRINE--EN BANC NINTH CIRCUIT HOLDS THAT THE GOVERNMENT SHOULD WAIVE RELIANCE ON PLAIN VIEW DOCTRINE IN DIGITAL CONTEXTS.--United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989 (9th Cir. 2009) (en banc).

In August 2002, the federal government launched an investigation of a San Francisco--area laboratory--the Bay Area Lab Cooperative (Balco)--and its alleged distribution of illegal performance-enhancing drugs to professional baseball players. (1) As part of the investigation, federal agents seized electronic data that contained the names of hundreds of Major League Baseball players and athletes from other professional sports. (2) Some of baseball's biggest names--Barry Bonds, David Ortiz, Manny Ramirez, Alex Rodriguez, and Sammy Sosa, to name only a few--were eventually leaked to the press as having tested positive for performance-enhancing drugs. (3) While much of the media frenzy has focused primarily on the players and the "Steroids Era" of baseball, the government's search raises important questions regarding the methods by which law enforcement may obtain digital evidence in investigations. Recently, in United States v. Comprehensive Drug Testing, Inc., (4) the Ninth Circuit held that the government's seizure of electronic data containing hundreds of athletes' names was improper. (5) More importantly, however, the court also held that the government must follow certain procedures in order to prevent the overseizure of information in electronic discovery cases. While the court reached a fair outcome that respected the players' privacy rights in this case, its prospective directives were unnecessarily sweeping.

Major League Baseball (MLB or League) entered into a 2002 collective bargaining agreement with the Major League Baseball Players Association (MLBPA) in 2002 that provided for "suspicionless" drug testing of all players through the collection of urine samples. (6) The players were promised that the results of their drug tests would remain anonymous and confidential. (7) The League contracted with Comprehensive Drug Testing, Inc. (CDT) to administer the program and with Quest Diagnostics, Inc. to perform the tests. (8)

In late 2003, the government served subpoenas on CDT and Quest seeking the test results for eleven MLB players. (9) The MLBPA and CDT moved to quash the subpoenas in the Northern District of California. (10) The government then applied for warrants in the Central District of California and the District of Nevada to search CDT's Long Beach facility and Quest's Las Vegas facility. (11) Those warrants "authorized the seizure of drug testing records and specimens for ten named Balco-connected players," as well as any materials relating to the administration of the drug testing program initiated by the League. (12) The warrants also authorized the search of computer equipment, with some caveats. First, designated "computer personnel" were to determine the most prudent method of obtaining the information sought. (13) If they determined that an onsite search would be impossible or impracticable, then agents were authorized to seize "either a copy of all data or the computer equipment itself." (14) Second, if such an offsite search of all data would be necessary, then the designated computer personnel would have to review the entirety of the data while "retaining the evidence authorized by the warrant and designating the remainder for return." (15)

Almost immediately upon the authorization of the warrants, federal agents executed the search on CDT's facility. (16) During the search, investigators located a computer directory labeled "Tracey," "containing all of the computer files for CDT's sports drug testing programs." (17) Agent Jeff Novitzky--not the designated computer specialist--reviewed the Tracey directory, which contained "the master file of positive drug test results." (18) Using information gleaned from the Tracey directory, the government applied for new warrants to seize records for all of the other players who had tested positive for performance-enhancing drugs. …

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